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Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.

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Speaker 1: A vigil in Uvaldi, Texas, Wednesday night to remember the

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Speaker 1: nineteen children and two teachers killed by an eighteen year

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Speaker 1: old in the deadliest school shooting in a decade. Another

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Speaker 1: in a string of mass shootings that have rocked the

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Speaker 1: country and for people across the country, from the President

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Speaker 1: of the United States to the coach of the Golden

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Speaker 1: State Warriors, there was sorrow, frustration, and anger at yet

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Speaker 1: another senseless shooting. Why why are we willing to live

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Speaker 1: with this carnage? Why don't we keep letting this happen?

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Speaker 1: Where in God's name is our backbone? Now we have

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Speaker 1: children murdered at school, When are we going to do something?

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Speaker 1: I'm tired. I'm I'm so tired of getting up here

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Speaker 1: and offering conduleces to to the devastated families that are

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Speaker 1: out there joining me. It's Columbia Law School professor Jeffrey Fagan.

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Speaker 1: This tragic shooting at an elementary school in Texas happened

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Speaker 1: just ten days after another tragedy at a supermarket in Buffalo.

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Speaker 1: But should we continue to be shocked at these shootings

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Speaker 1: when even modest restrictions on guns are not tolerated in

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Speaker 1: this country. Well, no, I think the past is the

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Speaker 1: best prolog for the future. And unless the laws change

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Speaker 1: restricting access to the kind of weapon rate that's been

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Speaker 1: used pretty much and almost exclusively in the last oh

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Speaker 1: I'd say dozeners so school shootings, then they're going to

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Speaker 1: keep happening. The refrain from gun rights groups, and in fact,

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Speaker 1: Oklahoma Republican Senator Jim Inhoff just said this is that

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Speaker 1: no legislation could stop shootings like this. Guns are the

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Speaker 1: leading cause of death for children and teenagers. And you know,

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Speaker 1: it's a fairly recent trend because other types of death

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Speaker 1: fair children and young adults the declining, but this one

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Speaker 1: seems to be going up. And it's unreasonable to expect

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Speaker 1: pattern that's existed fairly steadily over the past fifty and

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Speaker 1: twenty years, going back to Columbine to cease because we

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Speaker 1: pass the law is unreasonable and unrealistic. Whether we can

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Speaker 1: reduce the number of school shootings and then gradually bring

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Speaker 1: them to a fairly small number through passage of legislation

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Speaker 1: that would restrict access to firearms that have very little

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Speaker 1: value other than to kill other humans would be a

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Speaker 1: major step towards reducing the carnage in the schools. Should

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Speaker 1: there be tougher security in schools. I mean, my daughter

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Speaker 1: went to public high school in New York City more

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Speaker 1: than a decade ago, and the kids had to go

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Speaker 1: through metal detect every day. There are metal detectors in

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Speaker 1: school now. And Mayor Adams has just talked about the

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Speaker 1: very high rate of seizures of weapons in the schools

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Speaker 1: in the past several months, but he was also very

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Speaker 1: careful to say that guns are a very very small

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Speaker 1: fraction of the weapons that were seeing in schools from

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Speaker 1: metal detectors. So there's an incredible proliferation of weapons and

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Speaker 1: firearms in the hands of people who just don't have

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Speaker 1: the developmental capacities and the ability to control their impulses

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Speaker 1: who were using guns, and the availability of the weapons

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Speaker 1: seems to control the decision making about whether to use it. So,

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Speaker 1: for example, we did research when we asked kids who

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Speaker 1: were involved in gun violence several years ago, and we said,

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Speaker 1: tell us about the circumstances under which you choose to

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Speaker 1: use a gun, and the circumstances when you choose to

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Speaker 1: not use the gun, even though you could use a

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Speaker 1: gun and the students all said, we used the gun

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Speaker 1: when we believe that the other guy had a gun.

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Speaker 1: And so there's a certain amount of strategic thinking that

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Speaker 1: goes on when young people are deciding whether or not

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Speaker 1: to use a gun. If we're talking about school shootings,

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Speaker 1: the availability of a weapon that can very efficiently effectively

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Speaker 1: carry out whatever the goals are of a school shooter

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Speaker 1: or a church shooter. If we think about southern in

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Speaker 1: springt And Texas, or people in a grocery store in Buffalo,

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Speaker 1: New York, the availability of a weapon that can do

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Speaker 1: that job makes it almost irresistible when somebody has the

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Speaker 1: impulse to do that. And it's a fairly simple axiom.

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Speaker 1: If there were no firearms of this nature available, there

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Speaker 1: would be far, far fewer school shootings. And that's what

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Speaker 1: the Republicans don't get. They say, well, you know, the

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Speaker 1: statute has to be able to eliminate this. No, a

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Speaker 1: statute has to be able to reduce it. And then

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Speaker 1: eventually other measures come in that a reinforcing of the

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Speaker 1: statute that would help to eliminate the problem. Are there

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Speaker 1: other measures that schools should be taking for security, because

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Speaker 1: it doesn't look like there's going to be passage of

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Speaker 1: a law anytime soon, at least a federal law. No,

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Speaker 1: there certainly won't be, not even a background check law.

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Speaker 1: You know, it's hard to say about what schools can

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Speaker 1: do it. But all of the measures that I've heard,

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Speaker 1: from arming teachers, to employing retired police officers, to establishing

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Speaker 1: a sort of prison like perimeters around the school, they

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Speaker 1: may be effectively reducing school shootings. But you know, there's

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Speaker 1: something that we understand, and when somebody wants to commit

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Speaker 1: an act of violence, which is displacement, it might simply

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Speaker 1: displace those acts of violence in schools to places like

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Speaker 1: shopping malls which have been shot up, grocery stores which

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Speaker 1: we know have been shot up. And so you have

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Speaker 1: to worry about the fact that somebody with that motivation

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Speaker 1: will simply substitute another target for a school if they

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Speaker 1: can't shoot up the school. This is the reason why

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Speaker 1: we might want to think about reducing the access to

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Speaker 1: those weapons of mass destruction as opposed to simply hardening

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Speaker 1: the target. And what do you say to supporters of

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Speaker 1: gun rights who say you can infringe on my Second

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Speaker 1: Amendment rights? Second Amendment talks about firearms. It doesn't talk

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Speaker 1: about which types of firearms. We can preserve the rights

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Speaker 1: under the Second Amendment, but we can also reduce access

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Speaker 1: to firearms which have very limited purposes. In very high

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Speaker 1: left vality, one can go out and purchase a rocket

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Speaker 1: propelled grenade launcher, and that's a weapon. Some interpretations of

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Speaker 1: hell are in the current constitutional right might say that's

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Speaker 1: just simply a weapon that use in self defense and

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Speaker 1: take somebody's driving a tank into your living room. That's

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Speaker 1: an absurd example, of course, but it does talk about

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Speaker 1: the fact that there's no upper limit on the nature

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Speaker 1: of weapon, and particularly when it comes to a firearm.

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Speaker 1: So I think to the extent that we celebrate and

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Speaker 1: valorize the individual right to a firearm without thinking about

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Speaker 1: the collective costs or the collective rights of the individuals

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Speaker 1: who be subject to the consequences of making those firearms

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Speaker 1: available basically without any discretion. Is championing the individual over

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Speaker 1: the collective. Now, maybe that's part of the culture of

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Speaker 1: America that we want to celebrate. I don't think that's

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Speaker 1: the case, though there's too many instances where we celebrate

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Speaker 1: and preserve the well being of the collective. I think

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Speaker 1: there's a real fundamental constitutional principle about individual versus of

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Speaker 1: individual rights versus collective well being. Thanks. That's professor Jeffrey

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Speaker 1: Fagan of Columbia Law School. After the tragic school shooting

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Speaker 1: in Texas by a teenager who bought his a Our

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Speaker 1: fifteen style rifle legally, President Joe Biden called for action

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Speaker 1: on gun control legislation that installed on Capitol Hill. As

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Speaker 1: a nation, we have to ask, when in God's name

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Speaker 1: are we going to stand up to the gun mommy,

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Speaker 1: When in God's name we do what we all know

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Speaker 1: in our gut needs to be done. But the governor

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Speaker 1: of Texas, Greg Abbott, brushed aside calls for strict gun legislation,

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Speaker 1: saying gun laws don't curb violence in major cities that

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Speaker 1: have them. I hate to say it is, but there

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Speaker 1: are more people who were shot every weekend in Chicago

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Speaker 1: then there are in schools in Texas. Joining me is

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Speaker 1: an expert in Second Amendment law, Joseph Blocker, a professor

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Speaker 1: at Duke Law School. In America, we have more guns

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Speaker 1: than people, and there's been an upward trend in the

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Speaker 1: purchase of guns. Since why are Americans buying more guns? Yeah,

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Speaker 1: there's a few things to say about it, and I

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Speaker 1: think one is the sheer number of guns, but another is,

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Speaker 1: you know, why are people buying guns? As far as

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Speaker 1: the sheer number, I think the thing that always stands

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Speaker 1: out to me is that although the number of guns

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Speaker 1: and circulation seems to continue going up, the percentage of

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Speaker 1: Americans who own them continues to go down. There was

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Speaker 1: a bit of a spike during a pandemic, I guess

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Speaker 1: the background of George flood related protests and so on.

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Speaker 1: But look over the last ten or fifteen years, actually

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Speaker 1: the percentage of Americans who live in a household with

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Speaker 1: a gun continues to decline. What that means is that

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Speaker 1: the people who own guns are buying more and more,

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Speaker 1: but the number of people who have them tended to

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Speaker 1: go down. But the other thing that's changed really dramatically.

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Speaker 1: I think the tipping point within the last ten or

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Speaker 1: fifteen years is that the primary reason for gun ownership

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Speaker 1: has shifted. It has historically been recreation and hunting, and

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Speaker 1: it is today's self defense, and so the motivation and

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Speaker 1: then I think that sort of changes. The mindset for

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Speaker 1: gun ownership has dramatically changed too, and self defense is

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Speaker 1: a justification. We hear a lot even just as Brett

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Speaker 1: Kavanaugh asked during the oral arguments in the case over

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Speaker 1: New York's gun law, why isn't it good enough to

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Speaker 1: say I live in a violent area and I want

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Speaker 1: to be able to defend myself. So this is a

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Speaker 1: tricky one because so much of this is a debate

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Speaker 1: about sort of hypotheticals and counterfactuals and what would have

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Speaker 1: happened if this person that had a gun or person

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Speaker 1: to had a count And that's tricky. I think to

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Speaker 1: do that well requires a rigorous look at big sets

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Speaker 1: of data rather than sort of trading hypotheticals and anecdotes.

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Speaker 1: And there has been scholarship on this, and scholars disagree,

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Speaker 1: unsurprisingly about the degree to which permissive public carry laws

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Speaker 1: either do or don't reduce rates of particular kinds of

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Speaker 1: violent crime. I've never seen anything convin saying that guns

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Speaker 1: and schools would reduce the mass school shootings that we've seen.

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Speaker 1: I mean, there was an armed guard at the school

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Speaker 1: in Texas and that wasn't enough. The gun that was

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Speaker 1: purchased here was purchased legally. Is this the type of

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Speaker 1: gun that people should be able to purchase? It's an

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Speaker 1: assault rifle, right, Yeah, it's it's you know, the category

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Speaker 1: of what constitutes an assault rifle is actually something that

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Speaker 1: could be a little it can be harder to pin

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Speaker 1: down than some might think. You know, Um, what people

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Speaker 1: call assault rifles are usually just semi automatic rifles, meaning

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Speaker 1: that one pull the trigger shoots one bullet. They're not

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Speaker 1: machine guns, which are automatically pull trigger and multiple bullets shoots.

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Speaker 1: And in many ways, they're just normal rifles with these

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Speaker 1: sort of cosmetic features and some functional features, but mostly

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Speaker 1: cosmetic features that makes them look military. Now, for whatever

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Speaker 1: reason they have, you know, turned out to be the

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Speaker 1: weapon of choice for many of the worst mass shootings

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Speaker 1: that we've seen, and there's conflicting data about the degree

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Speaker 1: to which prohibiting them could save lives or could prevent

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Speaker 1: those kinds of shootings. Again, studies on both sides. For

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Speaker 1: ten years, we had a federal prohibition on the sale

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Speaker 1: of assault weapons, not the possessions. The possessions was still permitted,

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Speaker 1: but so you already had one, you could keep it.

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Speaker 1: But during the span of that federal law, not much changed,

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Speaker 1: it seems, with regard to gun violence, ekets to those guns.

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Speaker 1: But it was just ten years and it was just

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Speaker 1: the Saale probition, maybe a broader law with it's done more.

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Speaker 1: I think the thing that we also just keep in

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Speaker 1: mind is that, however, you so look at the data,

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Speaker 1: the biggest problem that the category of guns that's associated

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Speaker 1: with the most death is the handgun rather than the

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Speaker 1: assault rifle, which you know since showed in the high

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Speaker 1: high profile mass shooting incidents. But it's really the daily

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Speaker 1: toll of handgun violence, especially in urban centers, that accounts

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Speaker 1: for the majority of gun homicides. Every year. President Biden

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Speaker 1: has called on Congress to end gun violence bypassing common

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Speaker 1: sense gun laws. Is federal legislation the answer. I think

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Speaker 1: it's going to require a variety of responses, federal, state,

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Speaker 1: and local. I think there's some kinds of laws that

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Speaker 1: are best known at the federal level. Expanded background checks

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Speaker 1: would be a good example. That's the easiest to administer

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Speaker 1: using a national instant background check system, which relies on

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Speaker 1: data that comes from the state. But at the state level,

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Speaker 1: there's plenty of reforms as well, some of which have

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Speaker 1: some partisan support and has become more popular even in

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Speaker 1: the last five years. So the passage of extreme Risk

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Speaker 1: Protection order laws often called red flag laws. That's a

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Speaker 1: good example. There's more. The twenty states have those now,

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Speaker 1: almost all of them have been adopted in the last

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Speaker 1: five years, so there's room there. At the local level,

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Speaker 1: things are a little trickier because most states might more

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Speaker 1: than forty states now have what are called preemption laws,

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Speaker 1: which make it hard for local governments to regulate. But

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Speaker 1: in the states where local governments still have some regulatory space,

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Speaker 1: they could, for example, designate certain places like bars or

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Speaker 1: you know, busy public areas, stadiums, etcetera, as sensitive places

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Speaker 1: where guns shouldn't be taken. They might impose licensing requirements

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Speaker 1: on people carrying guns into particular places. So it's kind

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Speaker 1: of requires a broad response at the federal state at level.

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Speaker 1: So I want to go back because it wasn't until

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Speaker 1: two thousand and eight that the Supreme Court ruled the

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Speaker 1: Second Amendment protects the gun rights of individuals. That was

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Speaker 1: the Heller case, and it was a five to four

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Speaker 1: decision in europinion, Is that a true reading of the

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Speaker 1: Second Amendment? Yeah, I should say, in the interest of

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Speaker 1: full disclosure here, I was one of the attorneys who

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Speaker 1: represented the District of Columbia in that case. So I

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Speaker 1: was on the looser side of that case. You know.

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Speaker 1: My view on it now is that the question is

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Speaker 1: much closer than the Supreme Court made it sound. So

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Speaker 1: the question for the Court was whether the Second Amendment

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Speaker 1: extends to private purposes like the individual use of founds

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Speaker 1: for self defense against criminals, or whether it is limited

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Speaker 1: to the organized militia that it's like state militias from

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Speaker 1: into people and arms and activities having some connections to

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Speaker 1: those militia. I actually think that's a hard question. I

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Speaker 1: think that Justice Reiley's majority opinion could have been much

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Speaker 1: better reasoned if he were not so committed to relying

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Speaker 1: on some of the historical sources that he did. That

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Speaker 1: Justice Stevens in de sense had least plausibly the better

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Speaker 1: of the historical organism. But I think Heller itself has

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Speaker 1: settled law, and at least until now, it has not

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Speaker 1: been the problem. You know, the main obstacle to gun

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Speaker 1: regulation is still political. It's not the courts are striking

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Speaker 1: down gun laws. It's until recently, anyway, courts haven't been

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Speaker 1: striking on many gun laws. It's more that the laws

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Speaker 1: are just never being passed at first place, and justicically

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Speaker 1: as opinions very explicit that the government retains regulatory authority

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Speaker 1: over things like dangerous and unusual weapons and certain classes

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Speaker 1: of persons and gun carrying certain places, and for that matter,

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Speaker 1: concealed caring. And so it's really kind of up to

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Speaker 1: us what are we going to do in that space

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Speaker 1: that Heller leaves open. That space maybe closed somewhat, because

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Speaker 1: you know, we're waiting for this opinion from the Court,

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Speaker 1: and most people who listen to those oral arguments are

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Speaker 1: anticipating that the Court is going to strike down New

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Speaker 1: York's law imposing special requirements to get a hand onn license. Yeah,

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Speaker 1: I think the challengers in that case have reason to

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Speaker 1: feel confident. I think that the New York law, at

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Speaker 1: least in this current form, is probably going to be

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Speaker 1: struck down. And what we're really waiting to hear is

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Speaker 1: on what basis, like how broad is the Supreme Court's

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Speaker 1: ruling going to be? The challenge is to the New

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Speaker 1: York's current system for issuing permits to publicly carry an

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Speaker 1: field handgun. And the Court could just say, well, New

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Speaker 1: York standard is too strict or New York standard has

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Speaker 1: too much discretion built into it, and that would be

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Speaker 1: relatively limited, holding it still be a big one. The

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Speaker 1: Court could go further and say, you know, permit requirements

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Speaker 1: for public carrying are unconstitutional, or they all have to be,

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Speaker 1: or it called shall issue, meaning based on purely objective criterions,

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Speaker 1: and those those would be broader. The other thing the

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Speaker 1: Court could do, and I think this is the one

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Speaker 1: that sort of most in the weeds, but maybe the

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Speaker 1: most significant, is that they could adopt a whole new test,

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Speaker 1: a whole new methodology for evaluating whether gun laws New

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Speaker 1: York's or others are constitutional. And that would be what's

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Speaker 1: called the test is text history and tradition, which was

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Speaker 1: advocated by then Judge Breck Cavonology when he was on

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Speaker 1: the DC Circuit before he was elevated at the Supreme Court.

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Speaker 1: And under that test, the idea would be gun laws

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Speaker 1: should be evaluated based solely by reference to text, history

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Speaker 1: and tradition. And I found a brief in the New

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Speaker 1: York case arguing that that would be a bad idea.

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Speaker 1: I think that's true. I think that an extreme form

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Speaker 1: of originalism. It's just not going to give judges guidance

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Speaker 1: in most cases. It would make it hard to evaluate

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Speaker 1: you know the federal rules for hivoting guns on airplanes, right?

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Speaker 1: What do the Framers think about that? Nothing? I had

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Speaker 1: no idea. Or the current federal law for hivoting gun

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Speaker 1: possession by people who committed crimes of domestic violence not

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Speaker 1: even prosecuted as a crime in the late seventeen So

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Speaker 1: I think Thosese who are really in the fields are

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Speaker 1: keeping eye on that methodological question as well as the

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Speaker 1: substantive outcome with regards to New York's law. Thanks Joseph.

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Speaker 1: That's Professor Joseph Bloker of Duke Law School. A note.

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Speaker 1: Every Town for Guns Safety, which advocates for universal background

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Speaker 1: checks and gun safety measures, is backed by Michael Bloomberg,

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Speaker 1: founder majority owner of Bloomberg News parent company Bloomberg LP.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,

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Speaker 1: And remember to tune into The Bloomberg Gloss Show every

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Speaker 1: week night at ten b m. Wall Street Time. I'm

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Speaker 1: June Grosso, and you're listening to Bloomberg,